Censorship issues and the classification of films

Case notes investigated by the Parliamentary Ombudsman

The complaint

A local film distributor complained with the Office of the Ombudsman about the decisions and policies of the Board of Film and Stage Classifiers (the Board), which examines and classifies the films released locally.

Complainant explained that when films were received by the company from foreign suppliers, the Chairperson of the Board was notified for an appointment to be arranged for the films to be viewed and examined in the company’s preview theatre, on a date and at a time, when the cinema and the projectionist were available. For many years it had been the practice that once a film was viewed, the company’s management would be informed of the rating given and in case of disagreement a discussion would follow between the Board and the Company, but this practice had been stopped in November 2006, following a disagreement between the Board and the Company over the rating of a film, in regard to which a certificate had already been issued by the Police.

Complainant alleged that the Company was being negatively affected by the ratings given by the classifiers under the current Chairperson, commenting that in 2010, over 28% of the films released locally had been given a higher rating than in the United Kingdom. The Company seldom appealed the initial decision of the Board since this decision was rarely changed because the film was reviewed by members of the same Board. In fact, since 2006 out of the 17 decisions appealed only 6 ratings were revised. Furthermore, recourse to the Administrative Review Tribunal was not practical from the Company’s point of view since the procedure is too lengthy and time is of the essence in this sector.

Complainant also felt aggrieved by the fact that the Company was no longer being provided with the guidelines utilised by the Board when taking its decisions, guidelines which indicated details as to what would be objectionable in respect of classifications.

He therefore requested the Ombudsman to investigate the Board’s existing policies and to suggest an amendment of the same, particularly so that –

a) local theatrical film classifications be brought in line with those in the UK with the introduction of the 12A classification, in addition to those already in use;
b) the classifiers resume with the practice of discussing the rating awarded with the distributor and the guidelines are provided to the distributor;

c) the company is provided with a report on every film with details regarding the classification awarded;

d) film classifications should carry consumer advice with brief details; and

e) a separate and independent appeals Board be set up, to review films.

Facts and findings

When asked for their reactions, the Board and the Office of the Permanent Secretary within what previously was known as the Ministry for Justice and Home Affairs asserted that the Board had always acted in accordance with its legal obligations and that the existing classification system indicated in Regulation 45 of the Cinema and Stage Regulations is adequate. They explained that:

a) The Board does not discuss the films with the distributor before a rating is granted so that the classifiers are not influenced by external factors, including the opinions of the distributor, before watching and rating any film. Each film is assessed exclusively on the basis of its content and there would be no added value either for the Board or for film distributors, if the Board were to consult film distributors prior to, or pursuant to, the rating process because the Board does not have a policy whereby a specific rating is given subject to the condition that certain scenes are not screened – films are assessed in their entirety and rated accordingly. Furthermore, no consultation is required in terms of the Cinema and Stage Regulations ;

b) A report need not be provided when a classification is not being contested, but the Board provided a report explaining the reason for a specific classification, whenever requested by complainant;

c) Guidelines had been drawn up in line with Regulation 42(2), but these had not been given to complainant since the Board does not consider it necessary to publish or distribute guidelines which are meant to provide an indication as to the classification of films to the members of the Board. Moreover, the Regulations do not require the Board to publish or distribute the said guidelines; and

d) As stipulated in the Regulations, when a second examination is requested the film is not reviewed by the classifiers responsible for the first examination. Every effort is made to ensure that appeals are addressed within the shortest time-frames possible and the time-frame set out in the Regulations for the film to be reviewed is always respected. The fact that there were a number of instances where the rating given initially was reviewed on appeal, attests that there is fairness and transparency.

The Ministry also forwarded a copy of the guidelines utilised by the Board for consideration by the Ombudsman.

Complainant however, still insisted that the Board should not be allowed to operate with so much secrecy in a democratic country. He stated that discussions between the Board and the distributor should resume and that the guidelines, which assist film distributors to better assess if the classification given is correct and in accordance with the established principles, should thus be made public. He suggested that appeals should be dealt with by persons who are independent of the Board, as is the practice in other countries.

So as to appreciate fully the procedure utilised by the Board and to discuss the grievance under investigation, the Ombudsman held a meeting with the Chairman of the Board where a number of issues were discussed and where it became evident that the Board needed to be provided with the proper tools necessary to carry out its functions adequately, particularly premises where it could meet to view the films, which were currently being viewed at complainant’s office.

Developments occurring while the investigation was still pending

In the course of the investigation Government announced its intention to carry out an overhaul of the laws regulating stage performances and films. In fact, a three week consultation process was launched in mid-January 2012 and government’s proposed amendments were made available on the Government internet portal for the reaction of the public and interested entities.

In view of this positive development, the Ombudsman decided to examine the legislation currently applicable and the amendments being proposed, with the aim of making additional suggestions in regard to issues which might have been overseen in the proposed amendments. He also examined diverse systems of certification and procedures adopted in other countries.

The legislation applicable when the complaint was lodged

The Ombudsman observed that the legislator required every film to be classified, before it could be shown in local cinemas. The classification of films and stage productions was regulated by the Cinema and Stage Regulations, enacted under the Criminal Code (SL 10.17), in terms of which, classification is carried out by the Board of Film and Stage Classification, appointed annually by the Minister responsible for the Police. This Board is composed of a chairperson and between five to fifteen members appointed by the Minister.

In terms of the Regulations every film must be classified by at least two members of the Board on the basis of guidelines to be drawn up by the Board, based on the following main criteria –
“(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit, if any, of the production; and
(c) the general character of the production including whether it is of medical, legal or scientific character; and
(d) the person or class of persons to whom it is intended or by whom the production is likely to be viewed .”

In terms of the Regulations, if the person who had applied for the film to be examined disagrees with the classification awarded by the Board or is aggrieved by its decision, he may within ten days, apply in writing to the Chairperson for a second examination of the film. This is carried out by three classifiers, all of whom must not have participated in the initial examination of the film. Their decision may then be reviewed by the Administrative Review Tribunal.

The proposed amendments to the law

In terms of the proposals, the regulations would be enacted under the law regulating the Malta Council for Culture and the Arts. Two separate boards – A Board of Film Age-Classification and a Theatre Guidance Board – were to replace the current structure. However, while in the case of the Board of Film-Age Classification (referred to as film board), no indication was made of the expertise to be possessed by the members appointed on this Board, a detailed description was provided in the case of the Theatre Guidance Board.

In this regard, the Ombudsman commented that a similar approach to that envisaged in the case of the composition of the Theatre Guidance Board should be also adopted in the case of the Film Board, ensuring that the persons appointed broadly represent the Maltese community. The Ombudsman expressed the view that the Board should include a mixture of men and women with as close to a gender balance as possible, incorporating persons of different ages so that there is a reasonable spread of age amongst the members. It should include persons who can assess equality issues and the concerns of vulnerable persons and persons with special needs. Moreover, at least one of the members should be well versed in issues affecting children and young people, either as parent or through his previous employment or other activities he is involved in. One could appoint this member following consultation with the Commissioner for Children, as is being proposed in the Theatre Guidance Board. He also suggested that Board members should be able to articulate their views, appreciate the opinions of others and be flexible enough to change their views following discussion with the other classifiers.

In terms of the proposals, film classification was to be carried out in accordance with guidelines to be drawn up by the Board, but just as in the case of the current regulations, no mention was made on whether these guidelines would be made available to applicants or the general public. However, the Film Board would be endowed with the discretion to discuss the age-rating to be given to the film to be classified with the applicant prior to the certification of the film by the Board and as an additional age classification – 12A – was also to be introduced locally.

The Ombudsman pointed out that in terms of the proposals the Film Board was to issue, concurrently with the classification, notices to the public containing additional information as to the content of the films classified – a practice already in place in many countries and which is indispensable since it enables consumers to know which classifiable elements (e.g. coarse language, violence, drug use, nudity, etc.) have led to the classification decision.

Additionally, the amendments provided that a review of the classification was to be carried out by a separate board created specifically for this purpose – the Classification Appeals Board – whose decision can be appealed in front of the Administrative Review Tribunal.

Considerations of the Ombudsman

The Ombudsman immediately clarified that he would not be deliberating on the issues already addressed in the amendments government had proposed to the existing legislation, namely the introduction of the 12A category, the procedure to be adopted for a second examination of a film and complainant’s proposal that a classification should carry consumer advice with brief details. He would therefore be tacking complainant’s remaining grievances, namely –

a) complainant’s request that the Board provides distributors with a report on every film, giving details on the classification awarded;
b) that the Board resumes the practice utilised before 2006 and discusses the film and its contents with applicants after it views the film;
c) that applicants should be provided with the guidelines utilised by the Board.

The Ombudsman stated that discussion with the distributor before the viewing or following the review of the film should not be mandatory. He pointed out that the Chairperson of the Board had insisted that the Board did not consider it proper to discuss its opinions regarding the film viewed with the distributors, and that this discussion could give rise to the members feeling unduly pressured into changing their initial decision. The Ombudsman asserted that it was indispensable for the Board members, who had been appointed because of their expertise and knowledge, to be allowed to decide on a rating without being influenced by external factors, such as the opinions of the local distributor of the film. Discussion on the part of the classifiers with any third parties – whether it is an applicant or any other person they deem can be of assistance to them in carrying out their task diligently and conscientiously – should be left within the discretion of the Board, as envisaged by Regulation 42(5) of the present Cinema and Stage Regulations and reflected in the draft law proposed by government. In the Ombudsman’s opinion applicants would not be prejudiced by this absence of dialogue, provided they are given the possibility of making submissions, verbal or in writing, following the first decision of the Board. Should an applicant still not be in agreement with the report of the classifiers, he could then appeal and ask for a second examination of the film.

At this stage however, the Ombudsman referred to Article 41 of the Charter of Fundamental Rights of the European Union and declared that the rules of good administration require that entities in the public sphere operate in an open and transparent manner as possible, giving reasons when taking decisions. He maintained that public entities are in duty bound to justify their conduct and should be open, truthful and credible when accounting for their decisions and actions. They should clearly state the criteria on which their decision making was based and communicate their reasons to the parties concerned in due time, even in the case of an adverse decision. He remarked that one should look at complainant’s request to be provided with a report following every classification and at his suggestion that the rules guiding the Board in its decision making should be made available to the distributors, in the light of the above principles.

The Ombudsman pointed out that although the law in force did not require the Board to provide a report as to why a film was given a particular classification, the basic values of transparency, accountability and fair decision making suggest that the Board – and the legislator – should adopt a policy whereby a brief report indicating the key grounds which led the Board to decide in favour of a classification, is made available without delay to the person requesting certification. He added that when the certification is not being contested, this brief report is sufficient, provided it gives a clear motivation for the decision reached. However, an additional report ought to be provided by the Board when an applicant is not in agreement with the decision and requests more detailed explanations on how the Board came to its conclusion. This latter report should contain enough information to enable applicant to appeal from the initial classification, particularly when the proposals to the law in force at the time, suggest that a second examination of the film would be carried out by an Appeals Board which is completely distinct from the first Board.

The Ombudsman further commented that the principles of transparency and accountability dictate that the guidelines used by the Board should not only be made available to applicants, but also to the general public, who should be informed about the parameters used in the decisions taken.

This approach not only demonstrates fairness but will in turn increase public confidence and should be followed despite any risk that this might expose weakness. He elaborated that the publication of guidelines, not necessarily those used presently by the current Board, would help the public understand clearly how films are reviewed and why a film has been classified within a category and not another. It would further enable parents to decide whether a movie, even if rated within a specific category is suitable for their children, since guidelines generally, not only describe each of the classification categories, but the limits of material suitable for each category in more detail.

This having been said, the Ombudsman insisted that guidelines are tools and not binding legal documents and should be interpreted in the spirit of what is intended, as well as what is written. Consequently, any published list could not be considered as being exhaustive – they are parameters which help the Board decide and it is the Board, who has been delegated with its functions by the administration, who interprets and applies them and finally comes to a decision. This decision is generally binding, subject to the normal considerations of fairness and reasonableness.

Further reflections

The Ombudsman commented that the proposed Legal Notice to be issued under the Malta Council for Culture and the Arts Act, setting up a new regime for the regulation of cinema and stage showings, underscored a marked shift in policy from one exclusively based on censorship to one where the emphasis is on self-regulation, which necessarily presumes an adult audience, mature enough to assess the content of a theatre production or a film and to decide accordingly, whether or not to attend the performance. He noted that the proposed regulations effectively did away with censorship altogether for theatre productions but retained a measure of control over the showing of films through their pre-viewing by a board whose function is to classify their content according to the age of the audience. Through this classification, a measure of censorship can be enforced, primarily as a protection for children and vulnerable persons, as well as for the common good. Thus, even in the case of the showing of films, there has been a recognition that society has “matured” as a result of its exposure to the inevitable globalisation of mass-media and the technological advance in the means of communication, coupled with the realisation that the fundamental rights of freedom of expression and the right to impart and receive information can only be subjected to the most basic and essential limitations.

In his opinion, the emphasis of the new regulations should be that of providing an objective assessment that will serve as a guidance to help create an informed audience to make a choice, rather than an unwanted, imposed protection, forcibly limiting the adult’s freedom to choose.

The Ombudsman noted that this shift of emphasis was in line with the approach adopted in most European countries – an approach that may be welcomed by most, but contested by others. It was however a policy decision that reflected a change in mentality and way of life, and the political will of the legislator.

Function of the Ombudsman

The Ombudsman clarified that it is not his role to inquire whether this policy is valid or opportune. He can only express an opinion on whether the Regulations are unlawful, unjust, unreasonable, oppressive or improperly discriminatory – an issue, that does not arise at this stage. His role is that of inquiring and determining whether the administrative procedures adopted were just and respected the basic rules of a fair hearing.

The Ombudsman considered that the refusal of the Board to publish the guidelines drawn up by it on the basis of the criteria established by the Regulations, and which determine the classification given, could not be justified. This refusal not only undermined the transparency of the procedures of the Board, but went against the basic principle of a fair hearing since the parties are entitled to a decision that is well motivated, on predetermined and well publicised grounds and that allow the possibility of an appeal before the competent tribunal.

He emphasised that when exercising its functions to determine a classification, the Board not only defined the right of the distributor to exhibit the film, but also determined what section of the public, if any, would be precluded from viewing it. Consequently, it is not only the distributor who has the right to know what the guidelines drawn up by the Board are, but also the general public who has the right to be informed on how the board evaluated the criteria set out by law, what guidelines determined a classification, and in what circumstances would the board be justified in its decision to limit, in an absolute or relative manner, the fundamental right to freedom of choice and expression. In the Ombudsman’s view it should also be incumbent on the Board when classifying a film to draw up its decision in the light of these guidelines, identifying the reasons for the classification given, within their parameters.

Loosening state control on censorship is not to be equated to decriminalisation

The Ombudsman pointed out that though there is a marked and welcome change in the direction of concretely loosening the control of the State on what film and theatre productions an adult audience should or should not see, the proposed regulations did not completely decriminalise their breach, and actions violating the regulations could still be considered, in certain circumstances, an offence punishable at law.

According to the Ombudsman the fact that the State chooses to loosen its laws on censorship, does not mean that there will no longer be restrictions on the fundamental right of freedom of expression. These restrictions are considered necessary in varying degrees in all countries, to protect vulnerable people, children, the security of the State and the common good. It is for this reason that the European Convention on Human Rights permits the limitations of this right for a number of reasons including, among others, “for the prevention of disorder or crime, for the protection of health and morals”. Similar limitations are also imposed through other international instruments including the Convention on Civil and Political Rights .

He expounded that classifying a film or theatre production by age through a Board decision or self-assessment, did not exempt the exhibitor or producer from liability, if the film or theatre production is unacceptable from a criminal law point of view and violated statutory laws on the vilification of religion, offences against decency or morals, or contraventions affecting public order, obscene libel and others. Age classification however provides not only a yardstick as to the suitability of a film or production for viewing by persons within a given age bracket – but also a certificate, and in a way a first line of defence to exhibitors, that they conform to existing legislation. It is also for this reason that it is vital that the guidelines on which the Board based its judgement be publicised and subjected to public scrutiny.

Additionally, it was imperative that the guidelines should be made public since the proposed regulations, like the current ones, provide that classification was to be made on the basis of guidelines to be drawn up based, inter alia, on “the standard of morality, decency and propriety generally accepted by reasonable adults”. He commented that notions of morality, decency and propriety do not lend themselves to univocal definition and are generic, undefined concepts that require a subjective assessment to translate into a concrete reality. Similarly it is difficult, if not impossible, to determine or objectively establish what is generally accepted by reasonable adults and any judgement in this respect has necessarily to be conditioned by the personal convictions and background of those entrusted with taking a decision.

Recommendations by the Ombudsman

In the light of the above considerations the Ombudsman recommended that –
a) the guidelines should be published and made available not only to the person requesting the classification, but to the public in general. He suggested that the Administration and the Board co-operate in the formulation of new guidelines which will reflect not only the accumulated experience of the members of the Board, but also the opinion of the public in general, research available and the legal expertise required in the drafting of the guidelines;

b) in the interests of transparency, accountability and fair decision-making, and so as to ensure that the rights of distributors are not prejudiced, the obligation of the Board to provide a report motivating its decision should be mandatory.

c) the motivation in the latter report should be adequately comprehensive so as to enable the applicant to properly appeal before the Appeals Board where he feels aggrieved by the classification given . Once the Regulations provide for the right of a further appeal before the Administrative Review Tribunal, established under the Administrative Justice Act, to “any interested person from a decision of the Appeals Board” , it is even more imperative that the motivation of the Board is not only comprehensive but also made known to the general public. It is therefore advisable that the regulations should provide that the decisions of the Appeals Board be posted electronically. Any term for the filing of an appeal before the Administrative Review Tribunal should start running from the date on which they are available online;

d) the approach adopted in the proposed amendments to the legislation in regards to the appointees on the Theatre Guidance Board should be adopted in the case of the Film Board. The authorities should ensure that those appointed, broadly represent the Maltese community and that individuals of different ages are appointed. There should also be a mixture of men and women with as close to a gender balance as possible. One of the members must be well versed in issues affecting children and young people and in this regard this member should be appointed following consultation with the Commissioner for Children;

e) the newly set up Board should be provided with the tools necessary to carry out its functions appropriately, such as premises where to meet and review the films which it is requested to classify, an administrative support system and legal advice, where necessary.

Sequel to the complaint

Following the Ombudsman’s Final Opinion the Working Group appointed by the Ministry to work on the amendments on the Cinema and Stage Regulations met up with the Ombudsman and discussed with him the action which they intended to take in line with the Ombudsman’s recommendations.

In July 2012 Parliament started debating the relevant Bill, which was approved in October 2012. The Cinema and Stage-Age-Classification Regulations, 2012 were promulgated by Legal Notice 416 of 2012 on 30 November 2012.

Regulation 8 (4).

Case Studies